United States: Mendoza v. Nordstrom – Day Of Rest Rule

The California Supreme Court issued its long awaited ruling in
Mendoza v. Nordstrom, in which it clarified
California's so-called "day of rest" rule, which
guarantees employees "one day's rest therefrom in
seven," prohibits employers from "causing" its
employees to work more than six days in seven, and exempts
employees when, inter alia, the total hours of employment
do not exceed 30 hours in any week or six hours in any one day.
(Cal. Labor Code §§ 551, 552, 556.) Although part of
California law since 1858 in one form or another, the day of rest
rule had not been actively litigated until Plaintiffs Christopher
Mendoza and Meagan Gordon brought a Private Attorney General Act
claim against their former employer, Nordstrom, Inc. for allegedly
failing to provide them, and other aggrieved employees, "one
day's rest therefrom in seven." Nordstrom removed the case
to federal court and prevailed at the district court level. On
appeal, the Ninth Circuit asked the California Supreme Court to
determine:

"Is the day of rest required by
sections 551 and 552 calculated by the workweek, or does it apply
on a rolling basis to any seven-consecutive-day period?

Does the section 556 exemption for
workers employed six hours or less per day apply so long as an
employee works six hours or less on at least one day of the
applicable week, or does it apply only when an employee works no
more than six hours on each and every day of the week?

On May 8, 2017, the California Supreme Court announced that
"seven days" actually means a given employer-defined
workweek for purposes of Sections 551 and 552, that the six hours
or less per day exception applies only if the employee works six
hours or less each and every day of the week, and that
"cause" employees to work means anything other than
"absolute neutrality."

While this decision does bring clarity to California's day
of rest rule, employers should still exercise caution when their
employees work for more than six days in a workweek. Critically,
the California Supreme Court has suggested that employers can
violate the day of rest rule if they do more than notify their
employees of their right to rest, so innocuous conduct like asking
an employee if they would like to work an extra shift might be
problematic. The California Supreme Court also left open the
possibility that an employer can run afoul of the day of rest rule
when employees working all seven days in a workweek average less
than one day's rest for every seven over the course of a
month.

Background

Mendoza and Gordon are former employees of Nordstrom, Inc. On
three occasions in early 2009, Mendoza worked more than six
consecutive days: (1) between January 26 and February 5, 2009, he
worked 11 consecutive days; (2) between March 23 and 29, 2009, he
worked seven consecutive days; and (3) between March 31 and April
7, 2009, Mendoza worked eight consecutive days. In each of these
three instances, Mendoza worked less than six hours on some, but
not all days. Gordon worked more than six consecutive days on one
occasion, and on two of those days, worked less than six hours.

Mendoza filed a putative class action against Nordstrom in
December 2009, asserting a variety of wage and hour claims,
including a PAGA claim for violation of Sections 551 and 552.
Nordstrom removed the case to the United States District Court for
the Southern District of California, and Gordon subsequently
intervened. After the district court granted Nordstrom's
summary judgment on Plaintiffs' other claims, the case
proceeded to a bench trial on the day of rest PAGA claim.

The district court found that Sections 551 and 552 require a
rolling, and not per-workweek, calculation of the seven day period.
However, the district court, relying by analogy on the California
Supreme Court's decision in Brinker that an employer
is required to relieve an employee of all duty during their break,
but not required to ensure the employee actually takes a break,
found that employees may waive their right to a day of rest and
thus work additional days without triggering a statutory violation
on the part of the employer. Interpreting Section 552's use of
the term "cause" as equivalent to a "level of force
or coercion," the district court found that both Mendoza and
Gordon voluntarily chose to work additional hours, including
trading shifts with co-workers, picking up shifts at other
locations, or accepting additional work when offered by co-workers
or supervisors. The district court also found that no day of rest
is required under Section 556's exemption when the total hours
of employment in a week do not exceed thirty hours,
or when the hours worked on any day of that week
do not exceed six hours.

In deciding whether Sections 551 and 552 required calculation of
the seven days on a per-workweek basis or on a rolling seven
consecutive day basis, the California Supreme Court looked at the
plain language of the statutes, their legislative history, and
their place in the larger regulatory and statutory contexts.

The California Supreme Court first determined that both the
per-workweek and rolling interpretations were reasonable readings
of the plain language of the statute because, while neither
Sections 551 or 552 actually used the term "week," the
Legislature also did not use words like "in a row" or
"consecutively" to indicate an intention to provide
rolling coverage. And, while the "day of rest" rule
evolved from an attempt by the Legislature to mandate business
closures on Sunday, the move to more general language in the face
of religious objections was not determinative of the issue.

However, the California Supreme Court found that the IWC's
wage orders, which instituted days of rest on a per-workweek basis,
the requirement to pay overtime and double-time for hours worked on
the seventh consecutive day of a given workweek, and the exceptions
to Sections 551 and 552 all were best harmonized under a
per-workweek calculation. "In other words, employees are
generally assured a day of rest, but when circumstances dictate
forgoing a day of rest, section 510 provides, as a fallback,
consideration for the hardship in the form of premium pay. ... The
contrary interpretation, that the day of rest guarantee applies on
a rolling basis, would mean the Legislature intended some employees
denied a day of a rest to receive premium pay, but not others,
based on the fortuity of how their work schedules fell in relation
to the employer's established week." (Mendoza, p.
11-12.)

While the California Supreme Court concluded that Sections 551
and 552 should utilize a per-workweek calculation, it did caution
that the day of rest rule requires that "[i]f at one time an
employee works every day of a given week, at another time shortly
before or after she must be permitted multiple days of rest in a
week to compensate, and on balance must average no less than one
day's rest for every seven." (Mendoza, p.
14.)

The California Supreme Court Decides That "Any" Means
"Every"

While the California Supreme Court refused to limit the
part-time exemption to only those employees that both work 30 hours
or less per week and 6 hours or less per day, it
did determine that, to qualify for the daily exemption, an employee
must work 6 hours or less on every day of a given workweek. A
contrary reading that an employee only has to work 6 hours or less
on one day in seven, would, the California Supreme Court reasoned,
render either the weekly or daily exemptions meaningless. Also, the
California Supreme Court gave considerable deference to the IWC and
DLSE, which both had interpreted the "6 hours or less in any
day" exemption to mean 6 hours or less in each and every day
of the week.

The California Supreme Court Decides That "Cause"
Means "Anything Other Than 'Absolute
Neutrality'"

In perhaps the portion of the opinion that is most likely to
generate additional litigation, the California Supreme Court held
that "an employer's obligation is to apprise employees of
their entitlement to a day of rest and thereafter to maintain
absolute neutrality as to the exercise of that
right. An employer may not encourage its employees to forgo rest or
conceal the entitlement to rest, but is not liable simply because
an employee chooses to work a seventh day." (Mendoza,
p.20, emphasis added.) In interpreting "cause" this way,
the California Supreme Court rejected Plaintiffs' argument that
"cause to work" should mirror the longstanding definition
of "employ" in that an employer "causes" its
employees to work whenever it "allows, suffers, or permits an
employee to work a seventh day." (Mendoza, p. 20,
Martinez v. Combs (2010) 49 Cal. 4th 35, 64.) Instead, the
California Supreme Court essentially adopted
Brinker"s passive "provide but not require"
approach to meal and rest breaks. (Brinker Restaurant
Corporation v. Superior Court (2012) 53 Cal. 4th 1004, 1040.)
Unfortunately, this approach is a potential pitfall for employers
because it is unclear what conduct could violate the "absolute
neutrality" requirements of Mendoza.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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